(c) The activities of the Genossenchaften
(Germany) are financed largely by a charge
levied upon all waste discharges in the area
.. This effluent charge is determined by the
quality and quantity of the waste discharged
and computed upon the basis of the trans-
portation and treatment costs occasioned by
such discharge of waste, including costs of
planning, construction, and operation of the
integrated system.

Section 204 (b) of the pending bill re-
quires industries using publicly owned
systems to pay user charges. Such
charges are to reflect the factors that in-
fluence waste treatmer.
strength volume and delivery flow rate
including
characteristics of waste.

Both examples (a) and (b) above
would be covered by this requirement in
the pending legislation.

Section 209 requires regional waste
management planning and, relates fu-
ture grants to regional plans. To the ex-
tent that there can be similarity with the
Federal regional water management
Ruhr experiment without creation of
agencies-pollution control TVA's-the
amendment, so that there would be dis-
bill meets the objective of the Proxmire
charge of industrial waste which would
discharge directly into the water.

It would appear, as noted above, that
the only unique aspect of the Proxmire
proposal is there would be a charge on
directly onto the water. As such, the
industrial wastes which were discharged
Proxmire amendment would appear to
be a potential disincentive to waste dis-
charge. However, with the inclusion of
deadlines and statutory control require-

I simply do not believe that it would
be wise to encumber the bill with this ad-
ditional mechanism. The bill already, as
I have indicated in my remarks, does a
great deal of what the Senator from Wis-
consin proposes. His contribution by his
testimony to the subcommittee assisted
rest of the way and implant this as an-
us in putting that together, but to go the
other mechanism on the structure of the
bill itself would, in my opinion, unduly
complicate what it is we are trying to do.
We have set up a target. It is clear
enough. We have said in this bill to
American industry:

For 1985 we want to end all discharges into
all of our waterways. We are not going to
permit you to do this by paying tax or a fee.
We are not going to make an exception to the
extent that it has to be made in balancing
the cost against the cost of not enforcing it.

The target is clear. It is going to be
costly. Increasingly we will find the de-
velopment of regional development sys-
tems whose facilities will be financed by
user fees imposed upon industrial and
commercial users. And when we get to
that point, we will have pretty much
what the Senator from Wisconsin is talk-
ing about this afternoon. However, we
will get to that point by the process of
evolution that has been carefully struc-
tured into this bill. The cost will be very
great. I do not think we should compli-
cate it at this time by the addition of the
pending amendment.

Mr. PROXMIRE. Mr. President, I ap-
preciate very much what the distin-
guished Senator has said. I would like

First, in the case of the Genossen-
schaften water supply engineering works,
second, the engineering works for water
quality have been structured around the
river itself and designed to clean it up.
Another river was to serve as a sewer.

So, in the circumstances of the Ruhr, it
is possible to structure an institution
charge which is paid by the people who
use the water and to construct waste
treatment plans to be paid for by those
who use them.

Everyone was required to use those
works. So, a user charge was required.

There is no permission in the case of
the Ruhr to charge those who use the
facilities that have been built. They are
required to build the facilities. The State
required it. And they now pay for the
costs in that manner.

We are trying to stimulate the same
kind of institution in the pending bill.

We cannot give anyone the option of
polluting for a fee. We are saying that
our aim is to have no discharge and to
require the construction of facilities un-
der the pending bill; and the users will
be required to pay fees to support the
operation and maintenance.

So, there is a strong parallel between
the Ruhr, which has worked, and this
bill.

Mr. PROXMIRE. Maybe the Senator
from Maine and the Senator from Wis-
consin are talking about the same thing.
I do not know whether the Senator
wants to call it a user charge or an ef-
fluent tax. Whatever it is, I am certainly
not licensing the discharge of a pol-
[p. S17428]

lutant. If I were, I would not have the
support of all the conservation associa-
tions that have enthusiastically sup-
ported this approach.

What this would do would be to amend
the Muskie bill. It would not replace any
part of it. It would not permit more pol-
lution than the pending bill would per-
mit. It would set forth the basis upon
which people have to continue for the
next few years until the pending bill is
effective. Those persons or companies
that pollute would have an economic dis-
incentive. It would discourage them from
polluting. And it would provide more of
the funds necessary to purify the waters
that have been polluted.

Mr. MUSKIE. Mr. President, with all
respect to the Senator I cannot jump as
easily to the conclusion as he does.

To add this to the bill would have the
effect of complicating it, confusing it,
and creating difficulties. I have lived with
this through 45 executive sessions. I
know how complicated it is to make a
connection between what a particular
pollutant discharges and the water qual-
ity that results. We have struggled over
this problem. And this is directly related
to the effluent tax that the Senator is dis-
cussing in his amendment.

He states in his amendment:

The Administrator and the Secretary of
the Treasury shall prescribe such regulations
as are necessary to establish and put into
effect, not later than June 30, 1972, a sched-
ule of national effluent charges for all those
discharges other than municipal sewerage
which detract from the quality of the wa-
ter for municipal, agricultural, industrial,
recreational, sport, wildlife, and commercial
fish uses.

Kneese. We asked how we would estab-
lish a fee and determine if it would be
higher than the cost of cleaning up the
water.

How would the Senator avoid the pos-
sibility of setting the fee below the level
of cleanup cost? We never have had sat-
isfactory testimony. We invited it, but
we do not have it in the record today.
There is the general observation if you
could somehow put together a tax above
the cost of cleanup for every industry,
and do it for every industry, there will
be required an evaluation of these costs.
How would that be done to insure they
will be charging more for cleanup and
not less? That is the problem, and not a
single witness who has testified has ever
given us an answer.

Mr. PROXMIRE. I understand a study
was made in 1965 by the Federal Water
Pollution Control Administration on the
Delaware estuary which came up with
specific estimates on charge levels and
what water quality standards could be
achieved by a given level of charges.

Mr. President, I ask unanimous con-
sent that the study be printed in the
RECORD at the conclusion of the debate
on this amendment.

But this is not something so rare and
exotic we have not had experience with
it. As the Senator said, it has been used
and tried. Perhaps the Senator prefers
to call it something else, but it has been
tried in Germany and elsewhere with
success and in the next 15 years or so
it would be a helpful supplement to the
bill.

The Senator from Maine referred to

“(2) (A) identify, in terms of amounts of
constituents and chemical, physical, and bio-
logical characteristics of pollutants, the de-
gree of effluent reduction attainable through
the application of the best available control
measures and practices including treatment
techniques, process and procedure innova-
tions, operating methods, and other alterna-
tives for classes and categories of point
sources (other than publicly owned treat-
ment work); and

So what is involved here is not just
technology but other techniques dealing
with discharges.

May I add this point with respect to
best available technology, which is the
test to be applied between 1976 and 1981.
By 1981 industries must meet the no-
discharge standard unless they can dem-
onstrate that is not feasible, and in that
case they can turn to best available tech-
nology.

Mr. PROXMIRE. In both of those
criteria they have to demonstrate to
someone, and I presume the Administra-
tor, the best available technology, and
the judgment would be made by the Ad-
ministrator. Is that correct?

Mr. MUSKIE. I suppose a similar judg-
ment would be made on the effluent tax.
If there is no technology the cost of
which can be evaluated, that would tell
someone who has to make an adminis-
trative judgment whether the tax is, in-
deed, above the cost of clean up, if there
is no technology to process that.

Mr. PROXMIRE. Here is the advan-
tage of the effluent tax. Then, it is up to
the corporation itself to minimize its
tax and in doing so reduce pollution.
They will strive to find the best available
technology to do that. They are in the

Before we can apply those tests, the
connection must be established between
a particular pollutant and the water
quality impact. How else could we make
a determination whether the tax is re-
lated to the objective of cleaning up the
water?

In my statement this morning, I re-
ferred to an industry which discharges
mercury into a river. A factory dis-
charges into the Detroit River a daily
dose of 10 to 20 pounds of mercury.

I do not know if it is in the current
amendment or the previous one. The
Senator proposed a 10-cents-a-pound
penalty. If the minimum level is 10 cents
a pound for a pound of mercury, it would
not make a measurable impact with re-
spect to the 20 pounds of mercury. That
is an extreme example. That is a toxic
metal.

We have the same problem that may
not be as visible or as evident in estab-
lishing a connection between the basis
of setting a tax to establish the connec-
tion between particular kinds of pol-
lutants not affecting the biochemical de-
mand, the kind of pollutants with respect
to the environmental impact, and the
dollar or penny fee that needs to be ap-
plied to be sure that the tax to be paid
is more than the cost of cleaning it up.

There is no way. The committee heard
the testimony of the Senator from Wis-
consin. We heard the testimony of Dr.

mercury. With a pollutant as toxic as
mercury, we might have to set virtually
an infinite tax on it-tantamount to an
outright ban. My suggestion of a charge
level of 10 cents a pound related to BOD
tor stated.
discharges-not to mercury as the Sena-

Let me ask the Senator a few ques-
tions about it and then I will agree that
we can have a voice vote on the matter.
I would like to ask the Senator this ques-
tion. S. 2770 calls for the elimination
of all discharge by 1985. Who is to deter-
mine if an industry is using the best
available technology?

Mr. MUSKIE. With respect to phase
I, as I refer to it, the definition of "best
practicable control technology" is found
on page 81, line 10 of the committee bill.
I will read a portion of it. This is found
in section 304, which relates to informa-
tion and guidelines. The language begin-
ning on line 10 has to do with regula-
tions providing guidelines.

Mr. PROXMIRE. Did the Senator say
page 81, line 10?

Mr. MUSKIE. Yes; page 81, line 10.
Section (1) (A) states:

“(1)(A) identify, in terms of amounts of
constituents and chemical, physical, and
degree
biological characteristics of pollutants, the
of effluent reduction attainable
through the application of the best practi-
cable control technology currently available
for classes and categories of point sources
(other than publicly owned treatment
works); and

On the next page, page 82, the Senator
will find this language as a guideline for
the Administrator, beginning on line 5:

business to make money.

Mr. MUSKIE. What is the test to be
applied in the first place so that the judg-
ment of the corporation can be applied?
If you have no technology, what is given
then for a benchmark?

Mr. PROXMIRE. It can be based on the
amount of the damage. The Senator's
user charge is based on cost.

Mr. MUSKIE. I understand effluent fee
is based on the cost of cleaning. It can-
not be related to damage. It has to be
related to cost of cleaning up.

Mr. PROXMIRE. If we do not know
the cost, it has to be related to damage.
Mr. MUSKIE. Someone has to make
an administrative judgment.

Mr. PROXMIRE. Yes, but not on the
effluent charge or whether the technol-
ogy is advanced. That is for the people
in the industry.

Mr. MUSKIE. And, if there is no tech-
nology available?

Mr. PROXMIRE. Then they have to
pay a tax.

Mr. MUSKIE. What tax?

Mr. PROXMIRE. The tax on the basis
of BOD, and other pollutants.

Mr. MUSKIE. Is it related to the cost
of cleaning up?

Mr. PROXMIRE. It is if they know it,
and if they do not, it is related to the
cost of damage.

Mr. MUSKIE. That is a new factor
introduced in this subject this afternoon.
That has never been suggested in any
hearings I have conducted. It was always
geared to the cost of cleanup.

If a tax is proposed, how much higher
[p. S17429]

is never identified, but higher than
cleanup. Now, the Senator is talking
about damage. If the Senator has wit-
nesses who can make the connection for
us between the environmental damage
in the river basin to which the pollution
is contributing and to x number of pol-
luters-if the Senator has anyone who
can tell how to relate the damage pro-
vision to a single polluter, we would like
to know. We would restructure the bill.

Mr. PROXMIRE. I have said many
times that we do have experience and
we know it can be worked out.

In 1969, the General Accounting Office
issued a comprehensive and rather criti-
cal report on the status of our water
pollution control program. Among other
things, GAO found that-

Waste treatment facilities have been con-
structed on waterways where major pollut-
ers-industrial or municipal-located nearby
continued to discharge untreated or inade-
quately treated wastes in the waterways.

This was quite a condemnation of the
entire construction grant approach.

What does S. 2270 do to meet this
criticism-how do we prevent industries
located near waste treatment facilities
from simply dumping into the water-
ways? In fact, isn't the provision in this
bill for user charges-so that the Fed-
eral share of municipal plants can be
paid back-simply going to induce in-
dustry to continue the practice that GAO
condemned? And would not effluent
charges stop up this loophole?

Mr. MUSKIE. There are two ap-
proaches to this problem. One is the
permanent section of the legislation,

intelligently evaluate the environmental
impact of all those discharges is one of
the greatest bureaucratic challenges.
Something like that would have to be
done to establish the effluent tax once
there was agreement as to what the
effluent tax would relate to. They all have
discharges. There are different categories
of industries which are subject to some
kind of regulation, but they vary, de-
pending on the nature of the body of
water into which they discharge, its
quality, its force, its volume. So there are
variations all across the board. As far
as this committee has been able to find,
there is not a simple, direct control that
'could be applied by any bureaucracy
without any standards or minimal cost.
There is not. It is a complicated busi-
ness.

What concerns me about the Senator's
proposal is that, in addition to the bu-
reaucratic challenge that would be in-
volved in implementing S. 2770, we would
add the one imposed by the Senator's
amendment; and I say to him, without
taking the time to go into extended de-
tail, that the two simply would not mesh
that easily.

Mr. PROXMIRE. In section 209 of S.
2770, the bill stipulates that Governors
shall designate areas "which, as a result
of urban-industrial concentrations or
'other factors, have substantial water
quality problems."

Why was this used as a basis for de-
signating the area, and ultimately the
water quality local agency? Would it not
have been preferable to designate the
area on a river basin basis? In other

the area and an organization capable
of coming up with a plan for meeting
the goals of this act-section 209(a)
(2) A and 209 (a) (2) B;

Two years for the organization so
designated to come up with a water qual-
ity plan for meeting these goals-section
209 (b) (1);

Six months grace period may be
granted in meeting this deadline if it is
determined that the plan is under devel-
opment and likely to be effective-sec-
tion 209 (b) 1; and

Ninety days for the Environmental
Protection Agency to approve the plan
submitted to it-section 209 (c) (2).

This adds up to 31⁄2 years. Only then
do the operative provisions of S. 2770 be-
gin to take over. Of course, to have the
law enforced, it still may be necessary
for EPA to issue an order of violation, sit
down and attempt to persuade the pol-
luter to comply, and eventually, take him
to court thus commencing years of
litigation.

Would not effluent charges imposed
by June 30, 1972, as my amendment pro-
vides, be much faster?

Mr. MUSKIE. No; it would not. The
time periods which are set forth are rea-
sonably accurate. The reason why these
time frames are necessary is to make the
connections between the effluent dis-
charges, what they are, what their con-
stituent limits are, what their impact on
waterways is, what their impact on wild-
life is, what their impact on fishlife is, so
that we can identify every polluter and
come to grips with the problem.

The effluent tax is based on a polluter's

which involves enforcement of the pro-
visions of the Refuse Act of 1899. I am
sure the Senator knows that the Admin-
istration, operating under that provision
of the law-which has not been used for
the 70 years it has been on the books-
is now undertaking to carve out a new
kind of control built around Federal ad-
ministration geared to effluent dis-
charges. We have endeavored to
strengthen the ties that permit that sort
of control-the direct connection be-
tween the Administrator and the pollu-
ter-for the first time in the history of
water pollution control in this country.
We are structuring it to gear it to the
same kind of guidelines as those which
are spelled out in section 301 of the act.
May I point out, in addition, and it will
be in the colloquy, that what we under-
take to stimulate, in addition, is the de-
velopment of the regional management
approach to water quality.

Mr. PROXMIRE. If there is a wide-
spread violation of this act, unless there
is a dramatic reduction very promptly
after this bill is passed-and there might
very well be that-it seems to me it would
be far more difficult to stop it than if we
have the kind of effluent tax approach I
am suggesting.

Mr. MUSKIE. I would like to suggest to
the Senator that he might arrange to
have someone examine the difficulties
that the administration has encountered
in developing the conditions to be pro-
posed under Federal permits under the
Refuse Act of 1899. There are something
like 30,000 industrial polluters subject to
this authority. To get the information to

words, since discharges upstream may
well affect the water quality downstream,
should not one agency have jurisdiction
over both upstream and downstream dis-
charges-even though the urban-indus-
trial concentrations may vary.

Mr. MUSKIE. We are trying to get at
the control of pollution. To the extent
that those regions can, in addition, re-
flect river basins, fine; but I might point
out to the Senator that river basins are
not the only waterways we are concerned
with. We are concerned with estuaries.
We are concerned with coastlines. We
are concerned with lakes. We are not
concerned only with river basins. We em-
phasized urban-industrial concentrations
because it will identify the pollution
sources, but we leave considerable dis-
cretion beyond that to the Governors to
shape those regional waste management
systems.

Mr. PROXMIRE. I have a couple of
more questions. Then I will yield to the
Senator from New York.

How long will it take for the provisions
of the bill we are enacting today to be-
come operative?

As I count, it takes

Ninety days for the Environmental
Protection Agency to publish guidelines
for the identification of areas which have
substantial water quality control prob-
lems-pursuant to section 209 (a) (1);

Sixty days for the State Governor to
identify the areas with substantial water
quality problems, as outlined in the
guidelines-section 209 (a) (2);

One hundred and twenty days for the
Governor to designate the boundary of

contribution to the deterioration of the
environment, and is going to require the
same kind of analysis. I do not know of
any way to jump into this and know in-
stantly how much damage the polluter
has done, and have a violator's tax re-
lated to the particular damage he has
done. Someone has to analyze it. That
time frame is going to be necessary for
anyone to make similar evaluations.
Does the Senator know how to identify
that kind of analysis in order to shape
up an effluent tax?

Mr. PROXMIRE. What I am saying is
that from the experience of Delaware
study, to which I referred earlier, it could
be done in a lot less than 32 years, So
my amendment would mean far quicker
progress against pollution.

Mr. MUSKIE. I do not have that study
before me, but I do not agree with the
Senator on that period.

Mr. PROXMIRE. Sixth. In section 309
(b) of the bill, it states that "the Admin-
istrator shall commence a civil action
for appropriate relief" in cases of vio-
lations.

Does ths mean that EPA must sue
wherever a violation occurs, and the pol-
luter refuses to stop? Or does the Ad-
ministrator have discretion to go after
some polluters, and leave others to con-
tinue discharging?

Mr. MUSKIE. He is mandated to en-
force it wherever a pollution occurs.

Mr. PROXMIRE. For every violation?
Mr. MUSKIE. Yes.

Mr. PROXMIRE. Where is the agency
going to get the necessary manpower?
[p. S17430]